Unofficial Opinion 2001-3

August 24, 2001

To:

Senator, District 1

Re:

Miscellaneous questions regarding residency requirements for the General Assembly in light of reapportionment

You have requested my opinion on a number of questions that arise as a result of the recent approval of redistricting plans for the Georgia Senate based upon the 2000 decennial census. Essentially, those questions are:

1. How does Georgia law define “residency” in relation to a candidate for the General Assembly?

2. Georgia law generally provides that candidates for the General Assembly meet a one-year residency requirement. If a legislative plan has not been precleared under the Voting Rights Act one year prior to the election, would that residency requirement apply to the 2002 elections to the General Assembly? Would a court have the authority to modify the residency requirement or otherwise change the 2002 election schedule?

3. If a legislative plan has not been precleared prior to the primary qualification deadline for the 2002 elections, what legislative plan would be used to determine the districts for qualification?

4. If a legislative plan is precleared and a current member of the General Assembly moves to a different location to run for a particular office and, by doing so, moves out of the district currently in effect, would that person still be eligible to represent the current district?

5. If a legislative plan is precleared but later invalidated and replaced by yet another plan drawn either by the General Assembly or a court, would elections be held again and would the residency requirement apply then?

Some of these questions call for speculation about what action, if any, a reviewing court might take in fashioning either temporary or permanent remedies for various factual and legal situations. An answer based on such conjecture would likely prove of little value; however, I will endeavor to provide you with what sound information and legal precedent are available to answer the questions presented.

1. How does Georgia law define “residency” in relation to a candidate for the General Assembly?

As you noted in your letter, the Georgia Constitution establishes the qualifications to hold a seat in the General Assembly. In relation to the Senate, it provides:

At the time of their election, the members of the Senate shall be citizens of the United States, shall be at least 25 years of age, shall have been citizens of this state for at least two years, and shall have been legal residents of the territory embraced within the district from which elected for at least one year.

GA. CONST. Art. III, Sec. II, Para. III(a) (emphasis added)1. See also O.C.G.A. §§ 28-2-1(b), 28-2-2(b). Both of my predecessors have reviewed either this provision or its counterpart in the Constitution of 1976 and have concluded that a candidate for the General Assembly must meet this one-year residency requirement for the year immediately preceding the election for that office. 1989 Op. Att’y Gen. 89-31; 1981 Op. Att’y Gen. U81-28 (interpreting GA. CONST. of 1976 Art. III, Sec. III, Para. II.)

While these rules are written in the context of determining a person’s residency to register to vote, the same principles are applicable to determining the “domicile” of a candidate for office. They include the basic provision that:

The residence of any person shall be held to be in that place in which such person’s habitation is fixed, without any present intention of removing therefrom, and to which, whenever such person is absent, such person intends to return . . . .

O.C.G.A. § 21-2-217(a)(1). A person does not lose his permanent residence status if he temporarily moves to another state, county, or municipality unless he registers to vote or “perform other acts indicating a desire to change such person’s citizenship and residence.” O.C.G.A. § 21-2-217(a)(2). If a person moves to another state, county, or municipality and only has an intent to return at some indefinite time in the future, he will be deemed to have lost his residency in the locality from which he moved. O.C.G.A. § 21-2-217(a)(5) and (6). Another significant provision of this statute is that the declaring of a homestead exemption in a particular county or municipality is deemed to be a declaration of permanent residence. O.C.G.A. § 21-2-217(a)(14). See also O.C.G.A. § 48-5-40(3)(K); 1981 Op. Att’y Gen. 81-33.

In the case of a candidate for a state office such as the General Assembly, any elector may challenge the qualifications of a candidate, including the candidate’s residency, within two weeks after the close of the qualifying period. O.C.G.A. § 21-2-5(b). Additionally, the Secretary of State may challenge the qualifications of any such candidate at any time up until election. Id. In either case, after notice is provided to the challenged candidate, a hearing is held before an administrative law judge (ALJ) pursuant to the Georgia Administrative Procedure Act in order to take evidence regarding any residency challenge. O.C.G.A. §§ 21-2-5(b), 50-13-41. The ALJ must then enter an initial decision that is provided to the Secretary of State, who ultimately makes the final determination of a candidate’s place of residency. Id. In doing so, the Secretary of State would rely generally upon the law and principles outlined above.

2. If a legislative plan has not been precleared under the Voting Rights Act one year prior to the election, would that residency requirement apply to the 2002 elections to the General Assembly? Would a court have the authority to modify the residency requirement or otherwise change the 2002 election schedule?

This office answered the first of these questions in relation to the 1981 reapportionment of the General Assembly. 1981 Op. Att’y Gen. U81-28. There the question was posed whether a candidate for the House of Representatives who had previously lived within a particular numbered district could claim one year residency in that district even though reapportionment had drawn his residence into another numbered district. The opinion stated:

There is nothing in the statute which provides an exception to the one year residency requirement due to reapportionment of the district. My research reveals no judicial construction or application of the statute [GA. CONST. of 1976, Art. III, Sec. III, Para. II]. Absent any exception to the statute’s residency requirement, either express in the statute or implied by judicial interpretation, it is reasonable to assume that the statute applies its requirement regardless of the effects of reapportionment.

Id. at 306. The same is true today. I know of no authority that would permit the waiver of the Constitution’s durational residency requirement. Indeed, the Constitution’s language provides that while a person is not always eligible to run for the particular numbered district he prefers, every person who has maintained a permanent residence for one year within a newly drawn district would meet the durational residency requirement for purposes of running for office.

While it would be speculative to address whether any reviewing court would believe it had the authority to alter the Constitution’s residency requirement, it is clear that courts have in the past altered the schedule for elections in the context of a challenge to reapportionment. For example, in the wake of the congressional reapportionment decision in Busbee v. Smith, 549 F. Supp. 494, 518-19 (D.D.C 1982), aff’d 459 U.S. 1166 (1983), the district court established a broad range of deadlines for various phases of the election cycle, including the setting of dates for a special primary and general election for Georgia’s Fourth and Fifth Congressional districts. See also 1982 Op. Att’y Gen. U82-30 n. 3.

3. If a legislative plan has not been precleared prior to the primary qualification deadline for the 2002 elections, what legislative plan would be used to determine the districts for qualification?

It is premature to address this question because my answer would require speculation and therefore be of doubtful benefit. Currently, qualifying for political party candidates is scheduled to open at 9:00 a.m. on Monday, April 22, 2002, and to close at noon on Friday, April 26, 2002. O.C.G.A. § 21-2-153(c)(1)2 . Preclearance of those plans pursuant to Section 5 of the Voting Rights Act of 1965, as amended, is required prior to the plans being enforced. 42 U.S.C. § 1973c; 28 C.F.R. § 51.1 et seq. In the past, when the State has not obtained preclearance for legislative plans prior to holding an election, a court involved in litigation on the plans has ordered elections held on interim court-drawn plans based on plans originally drawn by the General Assembly; however, I have no way of knowing whether that same type of remedy would be appropriate in the future. See Johnson v. Miller, 929 F. Supp. 1529 (S.D. Ga. 1996) (Johnson III).

4. If a legislative plan is precleared and a current member of the General Assembly moves to a different location to run for a particular office and, by doing so, moves out of the district currently in effect, would that person still be eligible to represent the current district?

The Georgia Constitution provides that a member of the General Assembly vacates his seat as a matter of law upon ceasing to be a resident of the district from which he was elected. GA. CONST. Art. V, Sec. IV, Para. V. This provision is also incorporated into both the specific laws regarding membership in the General Assembly and the general provisions of Georgia law. O.C.G.A. §§ 28-2-1(b), 28-2-2(b), 45-2-4, and 45-5-1(a)(5). Therefore, if a current member of the General Assembly moves his permanent residence or domicile outside the current district, he will have vacated the office as a matter of law.

5. If a legislative plan is precleared but later invalidated and replaced by yet another plan drawn either by the General Assembly or a court, would elections be held again and would the residency requirement apply then?

It is again impossible for me to speculate about what remedy a reviewing court might consider or impose in the situation you have described. I believe that any action by a court would be fact-intensive and based upon circumstances that I cannot anticipate.

Conclusion

In summary, Georgia law provides that a determination of residency is a fact-specific inquiry designed to determine where a person permanently lives or intends to return at a specific date in the future. If a current member of the General Assembly moves his permanent residence outside his district, the office will become vacant as a matter of law. I know of no authority that demonstrates that any court reviewing a reapportionment plan could waive the constitutional one-year residency requirement for holding office in the General Assembly, but a court could make alterations in the statutory dates for conducting an election. Finally, I cannot provide legal advice on possible remedial actions a court might take in the future due to the speculation that would be required to address such fact-intensive questions.

Prepared by:

DENNIS R. DUNN
Deputy Attorney General

1 The qualifications for a Member of the House of Representatives are contained in GA. CONST. Art. III, Sec. II, Para. III(b) and differ only in that the age requirement to hold the office is 21 rather than 25.